SCOTUS Strategy

The retirement of Justice John Paul Stevens presents a test for Republicans as much as it does for President Obama as they weigh how much they want to wage a high-profile battle over ideological issues in the months before crucial midterm elections.

In the aftermath of the polarized health care debate, some Republican leaders said they were reluctant to give Democrats further ammunition to portray them as knee-jerk obstructionists. But they also want to harness the populist anger at Mr. Obama’s policies and are wary of alienating their base when they need it most.

Note that evaluating the nominee on the merits doesn’t seem to be an option. I think it’s pretty clear that there’s no political reason to think a moderate nominee in the Breyer/Sotomayor/Ginsburg vein would actually fare any easier than someone from a more robustly progressive tradition. The decision about whether or not to launch a no-holds-barred campaign against the nominee will be undertaken for other reasons. But as best I can tell, Barack Obama (and many other leading Democrats) don’t actually think that reviving old-school judicial liberalism would be a desirable outcome. That, rather than any political calculus, seems likely to me to drive a moderate pick.